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New York Divorce State Laws

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New York Divorce Laws:

RESIDENCY REQUIREMENTS:

To get an annulment, divorce, or separation, the following residency requirements must be met:

  • If the couple was married in the state and at least one spouse has been a resident of the state for a continuous period of one year prior to filing.
  • The couple has resided in the state as husband and wife, and either party has resided in the state for a continuous period of one year prior to filing.
  • Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

[Based on New York Domestic Relations Laws - Article 13 - Sections: 230]

LEGAL GROUNDS FOR DIVORCE:

No-fault Grounds:

As of October 12, 2010 New York is now a “no-fault” divorce law state. Meaning you can get a "no-fault" divorce if, according to either party, the marriage has "broken down irretrievably" for a period of at least six months.

Fault-Based Grounds:

In New York, you can file for a fault-based divorce for any of these reasons:

  • Cruel and Inhuman Treatment: This includes physical, verbal or emotional abuse that endangers your physical or mental well being to the point that it is "unsafe or improper" for you to live with the abuser. The judge will require more than that you simply did not get along with one another. The judge will be looking for specific instances of cruelty that occurred in the last five years.

  • Abandonment: To file for divorce based on abandonment, your spouse must have abandoned you for a period of one or more years. Specific examples of abandonment by your spouse include a physical move from the home or locking you out of the home. Also, if your spouse has refused to engage in sexual relations with you for at least one year, this can also qualify as abandonment and is known as "constructive abandonment."

  • Three Consecutive Years Imprisonment: This is a ground for divorce if your spouse has been in jail for three or more years in a row beginning after your marriage. Once your spouse has been in jail for three years in a row, you can file for divorce while your spouse is still in jail or up to five years after release from jail.

  • Adultery: You must be able to show that your spouse committed adultery during the marriage. This is usually hard to prove in court, since you need evidence from a third party - someone besides you or your spouse.
LEGAL SEPARATION:

A couple may receive a judgment separating the parties from bed and board, forever, or for a limited time, for any of the following causes:

  • The cruel and inhuman treatment.
  • The abandonment of the plaintiff by the defendant.
  • Failure to support the other spouse.
  • Adultery
  • The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

[Based on New York Domestic Relations Laws - Article 11 - Section: 200]

PROPERTY DISTRIBUTION:

New York is an equitable distribution state, meaning that marital assets will be divided in an equitable, but not necessarily equal fashion, except where the parties have entered a prenuptial or ante nuptial agreement. In determining an equitable disposition of property, the court shall consider:

  • The income and property of each party at the time of marriage, and at the time of the commencement of the action.
  • The duration of the marriage and the age and health of both parties.
  • The need of a custodial parent to occupy or own the marital residence and to use or own its household effects.
  • The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.
  • Any award of maintenance.
  • Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.
  • The liquid or non-liquid character of all marital property.
  • The probable future financial circumstances of each party.
  • The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party.
  • The tax consequences to each party.
  • The wasteful dissipation of assets by either spouse.
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
  • Any other factor which the court shall expressly find to be just and proper.

[Based on New York Domestic Relations Laws - Article 13 - Section: 236]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:

Either spouse may be awarded spousal support. In determining the amount and duration of maintenance the court shall consider:

  • The income and property of the respective parties including marital property distributed in the divorce.
  • The duration of the marriage and the age and health of both parties.
  • The present and future earning capacity of both parties.
  • The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary to become self-supporting.
  • Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage.
  • The presence of children of the marriage in the respective homes of the parties.
  • The tax consequences to each party.
  • Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.
  • The wasteful dissipation of marital property by either spouse.
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
  • Any other factor which the court shall expressly find to be just and proper.

[Based on New York Domestic Relations Laws - Article 13 - Section: 236]

SPOUSE'S NAME:

In any action dissolving a marriage, the final judgment shall contain a provision that each party may resume the use of his or her pre-marriage surname or any other former surname. [Based on New York Domestic Relations Laws - Article 13 - Section: 240-a]

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